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Tomblin v. Berryhill

United States District Court, S.D. West Virginia, Huntington Division

March 16, 2017

MARK ALLEN TOMBLIN, Plaintiff,
v.
NANCY A. BERRYHILL, [1]ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          PROPOSED FINDINGS AND RECOMMENDATION

          Omar J. Aboulhosn United States Magistrate Judge

         This is an action seeking review of the final decision of the Acting Commissioner of Social Security dying the Plaintiff's applications for Disability Insurance Benefits (DIB) under Title II and for Supplemental Security Income (SSI) under Title XVI of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-1383f. By Order entered May 9, 2016 (Document No. 4.), this case was referred to the undersigned United States Magistrate Judge to consider the pleadings and evidence, and to submit proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Presently pending before the Court are the parties' cross-Motions for Judgment on the Pleadings. (Document Nos. 14 and 17.)

         Having fully considered the record and the arguments of the parties, the undersigned respectfully RECOMMENDS that the United States District Judge GRANT Plaintiff's request for judgment on the pleadings (Document No. 14.), DENY Defendant's request to affirm the decision of the Commissioner (Document No. 17.); REVERSE the final decision of the Commissioner and REMAND for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g); and DISMISS this action from the docket of the Court.

         Procedural History

         The Plaintiff, Mark Allen Tomblin (hereinafter referred to as “Claimant”), protectively filed his application for Title II benefits on December 12, 2013, and his application for Title XVI benefits on December 19, 2013, alleging disability beginning March 12, 2013 due to “back injury, bulging discs, hyperglycemia, anxiety, and headaches”.[2] (Tr. at 289.) His claims were initially denied on May 28, 2014 (Tr. at 137-149.) and again upon reconsideration on September 17, 2014. (Tr. at 151-157, 158-164.) Thereafter, Claimant filed a written request for hearing on October 24, 2014. (Tr. at 165-166.) An administrative hearing was held on October 5, 2015 before the Honorable Maria Hodges, Administrative Law Judge (“ALJ”). (Tr. at 45-82.) On October 30, 2015, the ALJ entered a decision finding Claimant was not disabled. (Tr. at 20-44.) On December 30, 2015, Claimant sought review by the Appeals Council of the ALJ's decision. (Tr. at 18-19.) The ALJ's decision became the final decision of the Commissioner on March 2, 2016 when the Appeals Council denied Claimant's Request for Review. (Tr. at 1-6.) On May 6, 2016, Claimant timely brought the present action seeking judicial review of the administrative decision pursuant to 42 U.S.C. § 405(g). (Document No. 2.) In response, the Commissioner filed an Answer and a Transcript of the Administrative Proceedings. (Document Nos. 11 and 12.) Subsequently, Claimant filed a Brief in Support of Motion for Judgment on the Pleadings (Document No. 14.), and in response, the Commissioner filed a Brief in Support of Defendant's Decision. (Document No. 17.) Consequently, this matter is fully briefed and ready for resolution.

         Claimant's Background

         Claimant was 49 years old when the ALJ determined he was not disabled; he would be defined as a “younger person” by the Regulations on the date last insured (“DLI”). See 20 C.F.R. §§ 404.1563(c), 416.963(c). (Tr. at 51.) Claimant graduated high school and served in the United States Army. (Tr. at 51, 53.) Claimant alleged disability as of March 12, 2013 when he fell out of the back of a truck while working as a long-haul truck driver. (Tr. at 53.) He attempted to return to work after this incident, however, the ALJ deemed it was an unsuccessful attempt. (Tr. at 25.) During the fifteen years prior to his alleged onset date, Claimant had only been working as a long-haul truck driver. (Tr. at 56-57.)

         Standard

         Under 42 U.S.C. § 423(d)(5) and § 1382c(a)(3)(H)(i), a claimant for disability benefits has the burden of proving a disability. See Blalock v. Richardson, 483 F.2d 773, 774 (4th Cir. 1972). A disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable impairment which can be expected to last for a continuous period of not less than 12 months . . . .” 42 U.S.C. § 423(d)(1)(A).

         The Social Security Regulations establish a “sequential evaluation” for the adjudication of disability claims. 20 C.F.R. §§ 404.1520, 416.920. If an individual is found “not disabled” at any step, further inquiry is unnecessary. Id. §§ 404.1520(a), 416.920(a). The first inquiry under the sequence is whether a claimant is currently engaged in substantial gainful employment. Id. §§ 404.1520(b), 416.920(b). If the claimant is not, the second inquiry is whether claimant suffers from a severe impairment. Id. §§ 404.1520(c), 416.920(c). If a severe impairment is present, the third inquiry is whether such impairment meets or equals any of the impairments listed in Appendix 1 to Subpart P of the Administrative Regulations No. 4. Id. §§ 404.1520(d), 416.920(d). If it does, the claimant is found disabled and awarded benefits. Id. If it does not, the fourth inquiry is whether the claimant's impairments prevent the performance of past relevant work. Id. §§ 404.1520(f), 416.920(f). By satisfying inquiry four, the claimant establishes a prima facie case of disability. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981). The burden then shifts to the Commissioner, McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983), and leads to the fifth and final inquiry: whether the claimant is able to perform other forms of substantial gainful activity, considering claimant's remaining physical and mental capacities and claimant's age, education and prior work experience. Id. §§ 404.1520(g), 416.920(g). The Commissioner must show two things: (1) that the claimant, considering claimant's age, education, work experience, skills and physical shortcomings, has the capacity to perform an alternative job, and (2) that this specific job exists in the national economy. McLamore v. Weinberger, 538 F.2d 572, 574 (4th Cir. 1976).

         When a claimant alleges a mental impairment, the Social Security Administration (“SSA”) “must follow a special technique at every level in the administrative review process.” Id. §§ 404.1520a(a), 416.920a(a). First, the SSA evaluates the claimant's pertinent symptoms, signs and laboratory findings to determine whether the claimant has a medically determinable mental impairment and documents its findings if the claimant is determined to have such an impairment. Second, the SSA rates and documents the degree of functional limitation resulting from the impairment according to criteria as specified in 20 C.F.R. §§ 404.1520a(c), 416.920a(c). Those sections provide as follows:

(c) Rating the degree of functional limitation. (1) Assessment of functional limitations is a complex and highly individualized process that requires us to consider multiple issues and all relevant evidence to obtain a longitudinal picture of your overall degree of functional limitation. We will consider all relevant and available clinical signs and laboratory findings, the effects of your symptoms, and how your functioning may be affected by factors including, but not limited to, chronic mental disorders, structured settings, medication and other treatment.
(2) We will rate the degree of your functional limitation based on the extent to which your impairment(s) interferes with your ability to function independently, appropriately, effectively, and on a sustained basis. Thus, we will consider such factors as the quality and level of your overall functional performance, any episodic limitations, the amount of supervision or assistance you require, and the settings in which you are able to function. See 12.00C through 12.00H of the Listing of Impairments in appendix 1 to this subpart for more information about the factors we consider when we rate the degree of your functional limitation.
(3) We have identified four broad functional areas in which we will rate the degree of your functional limitation: Activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. See 12.00C of the Listings of Impairments.
(4) When we rate the degree of limitation in the first three functional areas (activities of daily living, social functioning; and concentration, persistence, or pace), we will use the following five-point scale: None, mild, moderate, marked, and extreme. When we rate the degree of limitation in the fourth functional area (episodes of decompensation), we will use the following four-point scale: None, one or two, three, four or more. The last point on each scale represents a degree of limitation that is incompatible with the ability to do any gainful activity.

         Third, after rating the degree of functional limitation from the claimant's impairment(s), the SSA determines their severity. A rating of “none” or “mild” in the first three functional areas (activities of daily living; social functioning; and concentration, persistence, or pace) and “none” in the fourth (episodes of decompensation) will yield a finding that the impairment(s) is/are not severe unless evidence indicates more than minimal limitation in the claimant's ability to do basic work activities. Id. §§ 404.1520a(d)(1), 416.920a(d)(1).[3] Fourth, if the claimant's impairment(s) is/are deemed severe, the SSA compares the medical findings about the severe impairment(s) and the rating and degree and functional limitation to the criteria of the appropriate listed mental disorder to determine if the severe impairment(s) meet or are equal to a listed mental disorder. Id. §§ 404.1520a(d)(2), 416.920a(d)(2). Finally, if the SSA finds that the claimant has a severe mental impairment(s) which neither meets nor equals a listed mental disorder, the SSA assesses the claimant's residual functional capacity. Id. §§ 404.1520a(d)(3), 416.920a(d)(3). The Regulations further specifies how the findings and conclusion reached in applying the technique must be documented at the ALJ and Appeals Council levels as follows:

At the administrative law judge hearing and the Appeals Council levels, the written decision must incorporate the pertinent findings and conclusions based on the technique. The decision must show the significant history, including examination and laboratory findings, and the functional limitations that were considered in reaching a conclusion about the severity of the mental impairment(s). The decision must include a specific finding as to the degree of limitation in each of the functional areas described in paragraph (c) of this section.

Id. §§ 404.1520a(e)(4), 416.920a(e)(4).

         Summary of ALJ's Decision

         In this particular case, the ALJ determined that Claimant met the requirements for insured worker status through March 31, 2019. (Tr. at 25, Finding No. 1.) Moreover, the ALJ determined that Claimant satisfied the first inquiry because he had not engaged in substantial gainful activity since March 12, 2013, the alleged onset date. (Id., Finding No. 2.) Under the second inquiry, the ALJ found that Claimant suffered from the following severe impairments: degenerative disc disease; diabetes mellitus with neuropathy; syncope; migraines; obesity; and adjustment disorder with depressed mood. (Id., Finding No. 3.) At the third inquiry, the ALJ concluded that Claimant's impairments did not meet or equal the level of severity of any listing in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 26, Finding No. 4.) The ALJ then found that Claimant had the residual functional capacity (“RFC”) to perform light work as defined in the Regulations

except he may never climb ladders, ropes, or scaffolds; occasionally climb ramps/stairs; frequently balance, stoop, kneel, crouch, and crawl; should avoid even occasional exposure to hazards; should avoid concentrated exposure to temperature extremes, wetness, and vibration; can finger frequently with the right dominant hand; and can understand, remember, and carry out simple instructions. (Tr. at 28, Finding No. 5.)

         At step four, the ALJ found that Claimant was incapable of performing his past relevant work. (Tr. at 36, Finding No. 6.) At the fifth and final step, the ALJ found that Claimant was 46 years old on the alleged onset date, making him a younger individual; that he had at least a high school education and able to communicate in English; that the transferability of job skills was immaterial to the determination of disability because the Medical-Vocational Rules support a finding of “not disabled” and that based on his age, education, work experience, and RFC, there are other jobs that exist in significant numbers in the national economy that Claimant can perform. (Id., Finding Nos. 7-10.) The ALJ determined that Claimant had not been under a disability from March 12, 2013 through the date of the decision. (Tr. at 37, Finding No. 11.)

         Claimant's Challenges to the Commissioner's Decision

         Claimant argues that the ALJ improperly evaluated the psychological opinion provided by Dr. Stephen W. Halmi when she gave his opinion little weight - Claimant contends that Dr. Halmi's evaluation was not simply a report of Claimant's symptoms, but a clinical interpretation of the signs of mental illness. (Document No. 14 at 6-7.) Further, Claimant contends that the ALJ failed to explain the reason for the little weight she gave Dr. Halmi's opinion, especially where it had consistencies with Dr. Michelle Hudson's January 2016 opinion.[4] (Id. at 7.) Next, Claimant argues the ALJ failed to consider all the medical opinion evidence as required under the Regulations and SSR 96-5p, specifically, the psychological opinion provided by Dr. Raymond Richetta, that he had moderate impairments in his social functioning and concentration, persistence and pace, which was corroborated by Claimant's treating psychologist. (Id. at 8.)

         Finally, Claimant asserts that the RFC does not address his limitations appropriately, as the ALJ only accommodated his mental impairment to understanding, remembering and carrying out simple instructions. (Id. at 9.) The ALJ did not explain why these additional limitations were excluded from the hypothetical question posed to the vocational expert. (Id.) Moreover, the ALJ did not fairly accommodate Claimant's right wrist limitations when she only restricted him to frequent fingering with his right hand. (Id.) In closing, Claimant requests this matter be reversed and remanded in order to correct the errors aforesaid. (Id. at 10.)

         In response, the Commissioner asserts that the ALJ's evaluation of Dr. Halmi's opinion is supported by substantial evidence and that she provided several reasons in her explanation for the weight given: it was inconsistent with the overall medical record as well as with Claimant's travels and activities of daily living, and the ALJ was entitled to discount the opinion specifically to the extent that it was based on Claimant's subjective complaints.[5] (Document No. 17 at 15-18.)

         With regard to the ALJ's treatment of Dr. Richetta's opinion, the Commissioner argues that he performed an evaluation of Claimant for purposes of his workers' compensation claim, and that he completed the exact same form as Stephen Wilcox, M.D. and Jason R. Southall, PA-C[6]completed over a year earlier. (Id. at 18.) The Commissioner adds that the only difference between the two forms was that Dr. Richetta opined Claimant had moderate restrictions in social function and adaption, whereas Dr. Wilcox opined he had mild limitations. (Id. at 19.) The ALJ gave slight weight to Dr. Wilcox's opinion because it was based on Claimant's subjective reports of symptoms that were not documented in the medical records. (Id.) Furthermore, Dr. Richetta's opinion was applicable only to the period from April 16, 2014 through October 16, 2014. (Id.) The Commissioner contends that there is no reasonable basis to conclude that the ALJ's determination would have changed had she weighed Dr. Richetta's opinion; the ALJ's failure to weigh this opinion is harmless error since she accommodated his mental function limitations in the RFC. (Id.)

         The Commissioner asserts that the two separate assessments provided by Dr. Froilan were applicable to only limited time periods, from September 16, 201[4] through December 16, 2014 and January 20, 2015 through April 20, 2015, respectively, and that the ALJ weighed the same form completed by Dr. Wilcox. (Id. at 20.) Again, the Commissioner argues there is no reasonable basis to conclude that the more mild findings of Claimant's mental status examinations in the record would have altered her decision. (Id.) In closing, the Commissioner asks the Court to affirm the final decision. (Id.)

         The Relevant Evidence of Record [7]

         The undersigned has considered all evidence of record, including the medical evidence, pertaining to Claimant's arguments and discusses it below.

         Records Pertaining to Physical Impairments:

         On March 12, 2013, the alleged onset date, Claimant fell out the back of a semi-trailer and twisted his right knee after landing on his foot. (Tr. at 481.) He presented to the emergency room two days later with right knee and low back pain. (Id.) On examination, Claimant was alert and in no acute distress; his back had normal range of motion, normal alignment, no step-offs, and tenderness in the lumbar midline and right lateral thoracic areas. (Tr. at 482.) He was alert and oriented with no focal neurological deficits observed. (Id.) X-rays of his right knee showed no acute bony abnormality or joint effusion and x-rays of his lumbar spine showed normal alignment with no acute fracture and minimal bony lipping of the endplates throughout the lumbar spine. (Tr. at 496.) Claimant was diagnosed with knee sprain and back contusion and given a prescription for Ultram and Ibuprofen. (Tr. at 482-483.) He was released to work with no restrictions as of March 18, 2013. (Tr. at 720.)

         On March 16, 2013, Claimant was admitted to Cabell Huntington Hospital with chest pain; it was noted that he “had similar presentations in the past for chest pain.” (Tr. at 413.) A CT scan of his chest was negative, an EKG was normal, and a stress test was normal. (Tr. at 413, 428, 438, 443.) An x-ray taken of his thoracic spine showed no fracture or subluxation and no significant arthritic changes. (Tr. at 439.) On examination the following day, Claimant had normal S1 and S2 sounds with a regular rate and rhythm with no murmurs or gallops. (Tr. at 428.) He had no edema in his extremities; he was alert and oriented; and he was cooperative with an appropriate mood and affect. (Id.) Claimant was started on statin for his hyperlipidemia and was discharged the following day with diagnoses of chest pain, hyperlipidemia, hyperglycemia, and back pain. (Tr. at 410-413.)

         On April 8, 2013, Family Urgent Care Center issued a note fully releasing Claimant to return to work that day without restrictions. (Tr. at 766.) On May 8, 2013, Claimant presented to the emergency room with back pain he sustained from his workplace injury in March. (Tr. at 470.) On examination, he was alert and in no acute distress. (Tr. at 471.) His physical examination was largely unremarkable. (Id.) An x-ray of his lumbosacral spine showed normal alignment, normal disc space, no fractures, with no changes noted compared to images taken on March 14, 2013. (Tr. 472, 480.) Claimant was discharged with a diagnosis of back pain with sciatica, and instructed to follow up with his family physician. (Tr. at 477.)

         On June 4, 2013, Claimant had an initial evaluation by HPT Physical Therapy Specialists. (Tr. at 580-582.) It was noted that he had fair rehabilitation potential, and that clinical findings were consistent with posterior lumbar derangement. (Tr. at 581.) The day before, when presenting Cabell Huntington Hospital urgent care, an MRI was ordered due to his complaints of low back pain. (Tr. at 760.) On June 10, 2013, Claimant reported that his pain decreased while lying in a hammock and lying in his pool on the pool noodles. (Tr. at 585.) An MRI dated June 11, 2013 showed “a very mild convex right lumbar curvature . . . vertebral alignment otherwise normal.” (Tr. at 812, 1011.) Imaging showed “there is mild posterior central annular T1 hyperintensity, which would suggest annular tear.” (Id.) The next day, June 12, 2013, Claimant told the physical therapist that he was not compliant with his home exercise program, but would occasionally do “some” exercises. (Tr. at 583.) He reported still having moderate LS pain, and he complained of a minor headache. (Id.) On June 21, 2013, Claimant reported low back pain that “is shooting pain up into his shoulder blades and a headache that is radiating into his eyes . . . [he] states that his symptoms are unchanged since beginning therapy.” (Tr. at 592.) He advised that he was leaving that weekend to visit his daughter in London and would return to physical therapy the following week. (Id.) During a therapy session on June 28, 2013, Claimant rated his pain at 3-4/10 at rest, but it increased to 8/10 “especially in b/t shoulder blades with” therapeutic exercises. (Tr. at 595-596.) It was noted that “Pt will be out of the country next week.” (Tr. at 596.)

         On July 12, 2013, Claimant cancelled his physical therapy appointment because he was in the pool with his granddaughter. (Tr. at 611.) On July 17, 2013, Claimant returned to physical therapy and rated his pain as a three on a ten-point scale. (Tr. at 618.) On July 19, 2013, he reported that he had no pain in his back. (Tr. at 615.)

         On August 29, 2013, Claimant was seen by Robert Marsh, M.D. at Marshall Health University Physicians and Surgeons complaining of foot pain, low back pain and neck pain that radiated from his left nape of his neck to the superior nuchal line, and that his lumbar spine “is slightly worse than his neck pain, but both are present.” (Tr. at 572.) Claimant denied radiculopathy, numbness, or tingling. (Id.) On examination, Claimant was oriented with appropriate speech; his cognition was intact; his cranial nerves were intact; he had full strength (5/5) in all extremities; and his sensation was intact to light touch, pain, temperature, and proprioception. (Tr. at 573.) His gait was normal and tandem. (Id.) Claimant had point tenderness along the bilateral paraspinal muscles of the lumbar spine and along his left trapezius muscle. (Id.) Dr. Marsh reviewed an MRI of Claimant's lumbar spine that demonstrated “very, very mild” L4-L5 degenerative disk disease, but good alignments and no neural foraminal stenosis. (Id.)

         Dr. Marsh diagnosed Claimant with cervical neck pain and low back pain related to muscle strain/tear and not related to any form of central neurological pathology resulting from compression of the cord. (Id.) Dr. Marsh ordered a TENS unit for muscle stimulation to help with Claimant's rehabilitative process and continued physical therapy. (Id.) He also ordered a pain referral for trigger point injections and told Claimant he could follow up with him on an as-needed basis. (Id.) However, a record dated September 13, 2013 from Cabell Huntington Hospital indicated that Claimant “would prefer not to do injections, if possible.” (Tr. at 750.)

         On October 28, 2013, Claimant was referred by the Ohio Bureau of Workers' Compensation to Steven A. Cremer, M.D. of North Star Orthopaedics for a 90-day evaluation. (Tr. at 575-579.) The “Allowed conditions in this claim” were: contusion of right knee; sprain of left knee and leg, NOS; back contusion; lumbosacral sprain; and annular tear. (Tr. at 575-576.) It was noted that Claimant was under the care of Dr. Wilcox and PA-C Southall. (Tr. at 576.) It was also noted that Claimant had a home exercise program and walked 2-3 blocks at a time. (Id.) Claimant was complaining of headaches, back pain, hip pain and muscle spasm. (Id.) He rated his pain level at 6-8/10 and that it was constant. (Id.) He was using physical therapy, a heating pad and rest to help with the pain. (Id.) Dr. Cremer noted that Claimant was alert and cooperative throughout the examination and that his gait was normal and he could get on and off the exam table independently. (Tr. at 577.) Dr. Cremer opined that Claimant had reached maximum medical improvement, and that he declined vocational services such as a work conditioning program and Functional Capacity Evaluation and was engaged in college courses. (Tr. at 578.)

         On November 5, 2013, Claimant left physical therapy early to sleep because he had to work on a paper that was due the following day. (Tr. at 676.) On November 22, 2013, Claimant's workers compensation benefits were suspended and he was discharged from physical therapy (Tr. 681).

         On December 10, 2013, the Ohio Bureau of Workers' Compensation closed his vocational rehabilitation file due to settlement of his claim. (Tr. at 743.) It was noted that Claimant was released to frequent lifting and carrying up to 20 pounds and continuously up to 10 pounds; he was also attending Marshall University and had enrolled for a second semester. (Id.) He received financial aid for his tuition and books, and his vocational goal was to become a History School Teacher. (Id.)

         On January 30, 2014, Claimant returned to Cabell Huntington Hospital Urgent Care with increased back pain. (Tr. at 745.) He reported that his pain was worse and that he could not sit or stand for five minutes without pain in his back. (Id.) On February 19, 2014, Claimant saw Ronald LeMaster, D.O., for headache and progressive memory loss, as well as abdominal pain and epigastric and right upper quadrant pain. (Tr. at 1066.) Dr. LeMaster started Claimant on Prilosec and ordered an ultrasound of his right upper quadrant. (Tr. at 1067.) Dr. LeMaster also ordered a prescription for Naprosyn for his headaches. (Id.) The ultrasound of Claimant's abdomen due to his complaints of lower quadrant pain showed a normal gallbladder. (Tr. at 1013.)

         On March 5, 2014, Claimant presented to Cabell Huntington Hospital with complaints of pain in both feet and ankles that had persisted for months. (Tr. at 1064.) He was diagnosed with plantar fascitis. (Tr. at 1065.) On March 13, 2014, Claimant returned to Cabell Huntington Hospital complaining that his hands and feet go numb, usually when he was seated; he reported that he has had these symptoms for years. (Tr. at 1062.) EMG testing was ordered. (Tr. at 1063.) That same day, Claimant saw Dr. Marsh for follow up on his cervical and back pain. (Tr. at 1053.) On examination, Claimant was oriented; his speech was appropriate; his cognition was intact; his cranial nerves were intact; and his motor strength was full in all four extremities. (Tr. at 1054.) Dr. Marsh noted that Claimant's gait remained somewhat antalgic and he walked bent over, but his cerebellar exam was without dysmetria. (Id.) Dr. Marsh noted Claimant did not receive the trigger point injections he recommended and that Workers' Compensation was unable to continue with Dr. Marsh's recommendations. (Tr. at 1055.) Dr. Marsh ordered an MRI of his cervical spine so that he could assess whether there was any significant injury in terms of disk degeneration or herniation. (Id.)

         On March 20, 2014, Claimant reported he had lower back pain with stabbing knife pain in both soles and difficulty to stand or walk, and that leaning forward makes it better. (Tr. at 1060.) He also complained of stiffness upon resting and admitted he had lower extremity swelling upon prolonged sitting and that he was ...


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